Appeal from the Superior Court of the District of Columbia. (Hon. Russell F. Canan, Trial Judge).
Before Wagner, Chief Judge, Terry and Ruiz, Associate Judges.
The opinion of the court was delivered by: Wagner
WAGNER, Chief Judge: Following a stipulated trial, appellant, Donald L. Hood, was convicted of carrying a pistol without a license (D.C. Code § 22-3204 (1989 Repl.)), possession of an unregistered firearm (D.C. Code §§ 6-2311 & -2376 (1989 Repl.)), and possession of unregistered ammunition (D.C. Code §§ 6-2361 & -2376 (1989 Repl.)). The sole question presented on appeal is whether the trial court erred in denying appellant's pre-trial motion to suppress tangible evidence,
i.e., the gun and ammunition which the police recovered from a small leather pouch found inside appellant's car. The resolution of this issue depends upon whether the particular facts surrounding the search and seizure provided the level of suspicion necessary to support the investigatory stop and search for weapons by the police inside the bag retrieved from appellant's vehicle under the principles of Terry v. Ohio, 392 U.S. 1, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968), and Michigan v. Long, 463 U.S. 1032, 77 L. Ed. 2d 1201, 103 S. Ct. 3469 (1983). We hold that the search was unreasonable under the circumstances. Accordingly, we reverse.
Officer Eugene Norris, a Metropolitan Police officer, testified at the pre-trial hearing on the motion to suppress that in the early morning hours of May 16, 1993, he and his partner, Officer Juan Hernandez, went to the Fourth District police station in response to a radio dispatch requesting an escort home for a "young lady," who was reported to be an officer. At the station, they talked with Isabel Coates, a dispatcher, who told them that she had requested the escort because her former boyfriend, appellant Hood, was parked outside of her mother's home, where she was staying, when she arrived there at 2:00 a.m. According to Officer Norris, Ms. Coates told the officers that she was afraid of Mr. Hood and that she did not trust him because he had threatened her during an argument the previous day. She also told the officer that Hood had been harassing her and that he was "following her at that time." She explained that she did not want any problem around her mother's house and that she wanted the officers to make sure she entered the house safely with her child or children. *fn1
The officers followed Ms. Coates in their police car as she drove the short distance to her mother's house in the 1500 block of Van Buren Street, N.W. When they reached the house, according to Officer Norris, Ms. Coates parked, gathered some belongings from her car, and pointed out an Audi automobile parked on the other side of an alley about two houses away. Ms. Coates then went up the steps and entered the house, while the officers approached the Audi in which appellant was seated.
Officer Hernandez approached the vehicle on the driver's side, while Officer Norris went to the passenger side. According to Officer Norris, they intended only to calm the man down and to ask him to move on. Both officers shined their flashlights inside the Audi to make sure that Hood was not reaching for anything that would endanger them. When Officer Hernandez "felt safe," he tried to get appellant to roll the window down or get out of the car. When Mr. Hood hesitated, Officer Norris suspected that he was hiding something. When Hood's car door opened, Officer Hernandez told his partner that he smelled alcohol, and he took Mr. Hood out of the car and to the rear of the vehicle. Officer Norris described Hood's demeanor during the encounter as calm, "mellow," non-combative, and inquisitive about the officers' purpose.
Officer Hernandez frisked appellant, and Officer Norris searched inside the car. Officer Norris explained that "our instinct is if someone hesitates or moves around inside of the car to check the immediate area for weapons for our safety." Officer Norris found a small leather bag between the bucket seats to the right of the driver's seat. He felt the bag with a crushing motion and concluded that it seemed to contain a weapon. The officer asked Mr. Hood if he had a weapon in the bag, and appellant responded that he had a weapon which he used while working as a security guard. Ms. Coates had not told the officers that appellant was a special police officer or that he might have a weapon. *fn2 Officer Norris seized the weapon and arrested Hood.
Ms. Coates testified at the suppression hearing that she had asked the police to escort her home, but she denied that she told them that Hood had threatened her. She said that she only explained to the officers that she and Hood had an "ugly" argument that day and that she did not want a confrontation in front of her mother's house. She testified that she described Hood's car for the police, but she denied pointing it out to them on the scene. On cross-examination, Ms. Coates indicated that she had lived with appellant previously and that they were still friends.
B. The Trial Court's Ruling
To the extent that Officer Norris' testimony conflicted with Ms. Coates' testimony, the trial court credited Officer Norris' version of the events and found the facts consistent with his testimony. The trial court concluded that the police conduct in making the stop and the search was reasonable under the circumstances and that the officers had an articulable suspicion which justified the limited search of those ...